Niru Gakenge v Simon Mbogo Gakenge [2017] KEHC 3186 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

SUCCESSION CAUSE NO. 423 OF 2002

In the matter of the Estate of  NYAGA KARUMA  (Deceased)

NIRU GAKENGE………...................... APPLICANT/ADMINISTRATOR

V E R S U S

SIMON MBOGO GAKENGE............RESPONDENT/ADMINISTRATOR

R U L I N G

1. This is a ruling on a preliminary objection dated 23/02/2017 raised by the advocate for the respondent/ administrator against the hearing of the applicant's summons for revocation of grant.

2. The preliminary objection is said not to be supported by the law.  It is also stated that the applicants have been filing numerous applications to delay the implementation of the grant.

3. The objection is opposed by the respondent on grounds that it raises only matters of facts and not matters of law as required in a preliminary objection.

4. I have perused the notice of objection and noted that it basically deals with matters of facts.  The only thing that comes near the subject of law is that the “application is not supported by the law....”.  The respondent does not give the details of the law.

5. I am in agreement with the respondent that the notice of preliminary objection does not raise any issues of law.  “A preliminary objection must consist of a point of law which has been pleaded or which arises by a clear implication out of the pleadings, and which if argued may dispose of the suit” as was held in the case of KENYA UNION COMEERCAI FOD AND ALLIED WORKERS VS WATER RESOURCE MANAGMENT AUTHORITY & ANOTHER [2015] eKLR.

6. I find that the notice of objection does not pass the test of “a pure point of law” which if argued may dispose of the suit or of the application.

7. This being a succession cause, the court will not award costs of this application.

8. Each party to meet its own costs.

9. The objection stands dismissed.

10. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF OCTOBER, 2017.

F. MUCHEMI

J U D G E

In the presence of:-

Ms. Njeru for Ithiga for respondents

Mr. Kamunya for the Applicant/Administrator